Search Site
Menu

Is a Premises Liability Case Affected By the Open and Obvious Rule?

A premises liability case is one in which a person sustains an injury while on somebody else’s property, whether it be a landlord, business or other entity. These cases almost always involve an issue of management or control over the premises. The question is whether the landlord or other person in control exercised reasonable care in maintaining the area.

In Massachusetts, I will often hear an insurance company argue that my client failed to take into account the open and obvious nature of the condition that caused the accident. In the Supreme Judicial Court’s decision of O’Sullivan v. Shaw, 431 Mass. 201 (2000), a plaintiff who jumped into a shallow area of a pool suffered substantial injuries. In that case, the court found that the open and obvious rule stopped the plaintiff from bringing a successful suit. The injured man could not expect a warning. This is a logical decision. Several commentators, including the Boston Globe, editorialized in favor of the Court’s decision.

The O’Sullivan case is a rather extreme example of the rule since a person should know the dangers of jumping headfirst into a pool when that person is not sure of its depth or knows it is shallow. Most cases are not so clear-cut. In fact, O’Sullivan was ruled inapplicable in another pool accident. In that case, the deck had insufficient lighting and no guardrails and led to the person’s fall. A warning was therefore irrelevant. Our courts are willing to find that there can be responsibility if property is maintained in a dangerous condition. The landlord, or other person in control, cannot claim that the dangerous condition was open and obvious.

In conclusion, the open and obvious rule will not be a proper defense to liability in most situations. It is overused by the other side. We are controlled by common sense but not controlled by an individual’s unwillingness to remedy an unsafe situation, no matter how open and obvious.

Leave a Reply

Your email address will not be published. Required fields are marked *

Feinberg & Alban, P.C. fervently protects your rights
  • The Boston firm of Feinberg & Alban, P.C. specializes its practice in the area of personal injury.

    The attorneys serve the entire state of Massachusetts in addition to affiliating with lawyers in other states to handle cases outside of Massachusetts.

  • $7.7 Million Award for Feinberg & Alban Client in Personal Injury Trial

    Boston Attorneys Win Highest Injury Verdict in Massachusetts in 2011 & 2012.

Client Reviews
  • google
    5.0/5.0

    Wish I could give higher than a 5 for this review. From the start the dedication to detail, care and skill that was applied to my case was outstanding. Robert Feinberg is exceptional at representing his clients. His depth & breadth of experience ma...

    Read more

    Rose M

  • google
    5.0/5.0

    After researching online, hiring Attorney Colleen Santora was the wisest decision I made. She represented me in my personal injury auto accident case. I sustained lingering post-concussive injuries and pain. Throughout a four year process, Colleen...

    Read more

    Diane DeMarco

  • google
    5.0/5.0

    Feinberg & Alban did a stellar job representing me at a time when my accident and a busy life didn't leave me any capacity to deal with the logistics of a lawsuit. From across the country, the firm (Ms. Colleen Santora, in particular) handled every a...

    Read more

    Trevor Zierhut

  • google
    5.0/5.0

    I was in a car accident recently that put me in the hospital and having Perry Feinberg from Feinberg & Alban was the best decision I ever made, with having so many choices for representation in these situations. The level of professionalism was incre...

    Read more

    John Stenis

  • google
    5.0/5.0

    I can't say enough about this law firm, and its commitment to its clients. Robert & Colleen took a personal interest in my case, which took several unexpected and frankly wild twists and turns along a very long road. They stuck with it, with me, even...

    Read more

    Wu tang Is for the children

See all reviews
Awards & Affiliations
Contact us

Quick Contact Form